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Enforcement of Anti-Bribery Laws - Perception vs. Reality - Increasing Focus on Enforcement of Anti-Bribery Laws Around The World

Despite the Nordic countries’ reputation for low levels of corruption, there is increasing cause for businesses in those countries to assess and tackle their corruption risks abroad. Recently, Nordic companies have been caught up in (sometimes public) foreign bribery investigations, some of which have resulted in significant fines and executives and their legal advisors going to prison. There is also reason for Nordic companies to expect foreign bribery enforcement to keep expanding. Officials in the Nordics have been urged to pay more attention to foreign bribery, while U.S. authorities are focusing powerful investigative techniques on Foreign Corrupt Practices Act (FCPA) cases around the world – including tactics historically reserved for organized crime and drug cases. Perhaps most importantly, law enforcement officials in different countries are working together more closely than ever on foreign bribery cases.

While the Nordic countries are recognized for low levels of corruption within their borders, they have been urged to increase enforcement of anti-bribery laws abroad. In 2015, Nordic countries again received the most favorable rankings in the Transparency International Corruption Perceptions Index (2015 results released in January 2016). Yet Transparency International’s website calls out “clean” countries that may have “dodgy records overseas,” citing a Swedish bribery investigation as an example. The website notes that “just because a country has a clean public sector at home, doesn’t mean it isn’t linked to corruption elsewhere.”

As signatories to the Anti-Bribery Convention of the Organisation for Economic Co-operation and Development (OECD), the Nordics have been subject to a series of reports and recommendations, all of which called on authorities to step up the investigation and prosecution of bribery abroad. Follow-up reports praised the increased resources and expertise devoted to foreign bribery across the region. However, the reports also identified continuing weaknesses and the need for more progress, especially in Denmark and Finland.

At the same time, the U.S. Department of Justice (DOJ) has expanded its tactics to investigate foreign bribery and increased its coordination with law enforcement agencies abroad. For Nordic companies subject to the jurisdiction of the FCPA, this greatly increases the ways in which a corruption issue elsewhere in the world could come to the attention of authorities in the U.S. or their home country. A 2014 speech by Marshall Miller, then a high-ranking official in DOJ’s Criminal Division, described the use of “proactive investigative tools” and tactics previously used in organized crime and drug cases – tactics such as “wiretaps, body wires, physical surveillance, and border searches.” This strategy has become a “staple” of U.S. white collar investigations. The aggressive use of those techniques is illustrated by the prosecution of one company’s former CEO, whose conversations were secretly recorded by the company’s general counsel, who wore a wire for the FBI. These forceful investigative tactics are likely to continue in the United States, as three FCPA-focused teams have been added to the FBI’s International Corruption Unit since 2014, and DOJ is adding 10 new prosecutors to its Fraud Section’s FCPA Unit.

Miller’s 2014 speech also emphasized DOJ’s dramatic increase in cooperation with foreign prosecutors, regulators, and law enforcement. Miller said that rather than competing with each other, DOJ and foreign authorities were increasingly working together on “parallel investigations.” That trend has continued since Miller’s speech, including in the Nordics. For example, Sweden’s anti-corruption chief, Christer van der Kwast, recently met with prosecutors from Britain, Switzerland, the Czech Republic, and Austria to coordinate several investigations. The OECD Working Group on Bribery, which includes all five Nordic countries, has held quarterly meetings where U.S. authorities were invited to share information with other anti-bribery prosecutors.

In sum, Nordic companies can expect to see more aggressive enforcement of their own foreign bribery laws – and more cooperation with U.S. authorities (which could also lead to more Nordic companies being pursued for violations of the FCPA) and increased use of investigative techniques previously reserved mostly for drug and organized crime cases.